By Dan Boaz
FMCSA has updated various guidance related to COVID-19, including guidance related to the Center for Disease Control’s order related to use of masks at “transportation hubs.” For the latest, visit www.fmcsa.dot.gov/COVID-19.
In his first day in office, President Biden signed an executive order and a related memorandum that confirm a reversal of the Trump administration’s deregulatory approach. The first executive order directly revokes various deregulatory executive orders that President Trump had signed four years earlier, saying that executive departments and agencies “must be equipped with the flexibility to use robust regulatory action to address national priorities.” The executive order (E.O. 13992), “Revocation of Certain Executive Orders Concerning Federal Regulation,” is available at https://www.federalregister.gov/d/2021-01767.
In a memorandum also signed on inauguration day, President Biden reinforced the tone of the executive order, directing the Office of Management and Budget and representatives of the various departments and agencies to develop recommendations for improving regulatory review. Biden asked that the recommendations “ensure that the review process promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects.” The memorandum, “Modernizing Regulatory Review,” is available at https://www.federalregister.gov/d/2021-01866.
Another White House document related to regulation was completely expected. In a memorandum, Ronald Klain, White House chief of staff, directed federal departments and agencies to freeze regulatory activity, subject to exceptions, pending review. The memorandum stops the publication of rules that had not been published in the Federal Register before January 20 and postpones the effective date for 60 days beyond January 20 of any rule that had been published. During that time, agencies may reopen the comment period and/or entertain new petitions for reconsideration. The freeze applies to regulatory guidance and notices of proposed rulemaking (NPRMs) as well as final rules. For Klain’s memorandum, visit http://bit.ly/WHfreeze.
Most significant final actions taken by the Federal Motor Carrier Safety Administration during the Trump administration – most notably the recent changes in the hours-of-service (HOS) regulations – are unaffected by the regulatory freeze. The most significant rule affected by the freeze that directly relates to trucking – although it is not specific to trucking – is the Department of Labor’s recent final rule regarding worker classification. (See Regulatory Update, January 2021) That rule is not scheduled to take effect until March, and it almost certainly will not take effect, at least not as currently drafted.
Regulatory freezes and reviews are common when the White House transitions to a new political party. However, reviews do not necessarily result in reversals. The Trump administration kept in place two major trucking-related rules issued late in the Obama administration – the drug and alcohol clearinghouse and the entry-level driver training rule. The Trump administrations did, however, withdraw several ongoing Obama administration rulemakings, including carrier safety fitness determinations, minimum insurance levels, and obstructive sleep apnea.
The U.S. Senate on February 2 voted 86 to 13 to confirm Pete Buttigieg as secretary of the U.S. Department of Transportation. The former mayor of South Bend, Indiana, had run for president in 2020 but ultimately withdrew and endorsed Joe Biden. Prior to his confirmation, Buttigieg had testified before the Senate Commerce Committee, which approved him by a 21 to 3 vote less than a week later. For a recording of the January 21 confirmation hearing, visit https://www.commerce.senate.gov/2021/1/ni.
President Biden has yet to nominate an FMCSA administrator – a position that has been vacant aside from acting executives since Raymond Martinez left the agency more than a year ago. However, the Biden administration has named Meera Joshi deputy FMCSA administrator, making her the agency’s acting executive until a new administrator is confirmed.
Joshi most recently was principal and New Your general manager with transportation planning firm Sam Schwartz. From 2011 until 2019, Joshi held senior positions with the New York City Taxi and Limousine Commission, first as deputy commissioner and general counsel and then as CEO and commission chair.
On the final full day of the Trump administration, the Department of Labor’s Wage and Hour Division issued an opinion letter (FSLA2021-9) concluding that a motor carrier’s requirement that tractor-trailer drivers abide by safety-related mandates does not constitute control for the purposes of determining independent contractor status. However, since President Biden’s inauguration and the regulatory freeze it imposed, WHD has withdrawn the January 19 opinion letter. In its place, the website provides the following notice: “WHD is withdrawing opinion letters FLSA 2021-4, FLSA2021-8, and FLSA 2021-9. These letters were issued prematurely because they are based on rules that have not gone into effect. This withdrawal is an official ruling of the Wage and Hour Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259, and these letters may not be relied upon as statements of agency policy as of the date of withdrawal.” Opinion letters are available at https://www.dol.gov/agencies/whd/opinion-letters/search.
The opinion letter specifically addressed four basic types of safety requirements that a carrier might impose on an owner-operator: (1) video-based onboard safety monitoring systems; (2) systems that monitor sensor and engine data to assess risky behavior; (3) installation and use of a GPS-based speed limiter; and (4)mandatory monthly safety meetings, quarterly reviews, and quarterly online safe-driving courses.
In the waning days of the Trump administration, FMCSA issued a notice of proposed rulemaking (NPRM) that would adopt an alternative vision standard for physical qualification to replace the current vision exemption program. The NPRM would allow individuals who cannot meet either the current distant visual acuity or field of vision standard, or both, in one eye to be physically qualified to operate a commercial motor vehicle (CMV) in interstate commerce.
Comments are due March 15. Because the NPRM was published before January 20 but is not a final rule, the docket presumably remains open unless and until FMCSA rules otherwise. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-28848.
Less than a week before President Biden’s inauguration, FMCSA announced a proposed pilot program to evaluate allowing CMV drivers to use sleeper berth splits of 6 hours/4 hours and 5 hours/5 hours. The final HOS rule implemented in September allows a 7/3 split in addition to an 8/2 split, which had been the only sleeper berth split option for about 15 years.
The proposed pilot was not published in the Federal Register before the inauguration, and both the January 14 news release and the draft proposal notice linked to in the news release have since been removed from the FMCSA website. The action was not unexpected as the Biden White House had announced on January 20 a freeze on all rulemaking and guidance documents that had not already become final before January 20.
FMCSA last year proposed two other pilot programs – one on allowing a pause in the 14-hour driving window and one to assess the safety of younger CMV drivers in interstate commerce. Although the agency published both proposals and solicited comments on them, neither was finalized before the Trump administration exited.
A final rule announced in in December to loosen a longstanding restriction on commercial driver’s license (CDL) testing probably will not take effect. FMCSA in December announced a final rule that would have allowed states to permit third-party skills test examiners to administer CDL skills tests to applicants to whom those examiners also provided skills training. (See Regulatory Update, January 2020)
In its December 17 news release, the agency linked to a draft copy of the final rule, but it was never published in the Federal Register. Although the news release remains on the FMCSA website – unlike the release related to a proposed pilot program on split rest in sleeper berths – the link to the draft rule no longer works. Given the regulatory freeze imposed by the Biden White House, the rule is unlikely to be published.
FMCSA’s ability to oversee whether drivers meet physical qualification standards to operate safely is limited because of a lengthy outage of the National Registry of Certified Medical Examiners and the resulting backlog of driver examination reports that were not entered into the registry, the DOT Office of Inspector General concluded. An OIG audit also found that weaknesses associated with the accuracy and completeness of data in the registry limit the effectiveness of FMCSA’s oversight. Another problem is that the agency is not yet conducting annual eligibility audits after certification, which means that FMCSA could be missing fraud indicators or other risks, the OIG said. The DOT OIG audit report is available at https://www.oig.dot.gov/library-item/38181.
The Commercial Vehicle Safety Alliance has set May 4-6 as the dates for this year’s International Roadcheck intense inspection event. This year’s emphasis will be driver HOS compliance and vehicle lighting violations. In the event a driver is transporting COVID-19 vaccine, law enforcement will not hold up shipments for inspection unless there is an obvious serious violation that is an imminent hazard, CVSA said. International Roadcheck traditionally was held in early June, but it had been scheduled for early May last year before it was rescheduled for September because of the pandemic.
Prior to the inauguration, FMCSA announced the 2021 membership of its Motor Carrier Safety Advisory Committee and the initial appointees to the committee’s new driver subcommittee. The agency expanded the MCSAC’s membership to 25 from 18 previously. Of those 25, 16 prior MCSAC members are returning. Only Bill Dofflemyer and Leroy Taylor, law enforcement representatives from Maryland and South Carolina, respectively, have departed. New members are:
The new 25-member driver subcommittee will provide direct feedback to FMCSA on various issues, including regulation, enforcement, training, parking, etc. For more on MCSAC and the driver subcommittee, visit https://www.fmcsa.dot.gov/mcsac.
In a document published since President Biden took office, FMCSA is accepting comments until March 3 on proposal to revise information collection requirements related to the obligation of household goods (HHG) brokers to provide potential shippers with information throughout the various stages of interaction – prospecting, contact, estimate, and agreement. The agency specifically is asking (1) whether the proposed collection is necessary; (2) whether the estimated paperwork burden is accurate; (3) how FMCSA could enhance the quality, usefulness, and clarity of the collected information; and (4) how the agency could minimize the burden without reducing information quality. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-02021.
The U.S. Court of Appeals for the Ninth Circuit on January 15 denied petitions for review of FMCSA’s December 2018 determination that federal law preempted California’s meal and rest break (MRB) rules as applied to drivers of property-carrying CMVs who are subject to federal HOS regulations. The three-judge panel noted that FMCSA has the authority under federal law to review for preemption state laws on and regulations “on commercial motor vehicle safety” and held that the agency’s interpretation merited deference under Chevron v. Natural Resources Defense Council. Although FMCSA conceded that it’s determination departed from its own 2018 interpretation, it provided a reasonable basis for doing so, the court ruled.
The Ninth Circuit also concluded that FMCSA’s decision relied on the Congress’ stated interest in uniformity of regulation. Just because California regulated mean and rest breaks in a variety of industries does not mean that the MRB rules were not “on commercial motor vehicle safety.” The panel further said FMCSA’s determination that the MRB rules were “additional to or more stringent than” federal regulation were supported by the agency’s finding that California required more breaks, more often, and with less flexibility regarding timing than the federal rules.
The Ninth Circuit’s decision is available at https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/15/18-73488.pdf. For FMCSA’s preemption determination, visit https://www.federalregister.gov/d/2018-28325.
In November, FMCSA issued a similar preemption declaration regarding MRB rules in the State of Washington. (See Regulatory Update, December 2020) Given that Washington also falls within the Ninth Circuit’s jurisdiction, it would seem likely that FMCSA’s ruling in that situation also would be upheld.
Although the status of individual proceedings is unclear until FMCSA clarifies how the regulatory freeze applies to open proceedings, several FMCSA proceedings initiated late in the Trump administration remain open for public comment:
1. As anticipated, the Biden Administration has rolled back helpful Executive Orders and pending rules including the Department of Labor’s economic realities test discussed last month. The Administration’s “Modernizing Regulatory Review” document signals that the Administration will encourage agency use of its discretion in new policy initiatives granting great deference to the Agency’s purported expertise. While the Administration’s Executive Orders cannot nullify the Administrative Procedures Act or statutes intended to protect the rights of affected parties and small businesses in particular, these developments not only affect current issues, but they also have a more far-reaching effect. Whether the DOT’s final rule establishing administrative due process will be formally repudiated remains to be determined. Yet, neither the White House nor the Democratic-controlled Congress can be seen as a champion of regulatory restraint, particularly with respect to safety and labor/independent contractor issues.
2. The Ninth Circuit decision on the meal and rest break discussed above is clearly a victory for court recognition of the “federal preemption” doctrine. Yet the Ninth Circuit’s reference to “Chevron deference” is not helpful. When the Commerce Clause and federal preemption of state laws is used to trump state law in the name of uniformity, one must be careful what one asks for. “Chevon deference” refers to court precedent that holds that the benefit of the doubt goes to the Agency in any judicial appeal of an Agency decision. The new Attorney General, Merrick Garland, is a proponent of this doctrine. Accordingly, in the next four years we can expect a more difficult task in reining in major changes in regulations and guidance.
3. As noted above, eight new appointees have been named to the Agency’s MCSAC. The new members do not change the profile of the committee and includes 3 safety advocates and 2 enforcement representatives. Missing from the list are any of a number of qualified small carrier representatives that would have added needed representation for the over 500,000 small carriers the FMCSA oversees.
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